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May 18, 2023

Some extended discussion of criminal doctrines as SCOTUS unanimously dismisses federal tort suit against Twitter alleging "aid" to ISIS

The US Supreme Court handed down six opinions in argued cases this morning, many of which were unanimous.  There was an intellectual property theme, of sorts, as the opinions included a patent ruling and an interesting copyright fair use case.  Also arguably in the IP lane was also the disposition of federal tort suits brought against Google and Twitter claiming that they were liable for aiding and abetting ISIS terrorism under 18 USC § 2333(d)(2).  The main opinion from the unanimous Court disposing of these cases was authored by Justice Thomas in Twitter v. Taamhen, No. 21–1496 (S. Ct. May 18, 2023) (available here). And those technically a matter or tort law, lots of the discussion draws on criminal law doctrines. Here is the start of the opinion of the Court and one passage with the lots of talk of criminal doctrines:

Under 18 U.S.C. § 2333, United States nationals who have been “injured . . . by reason of an act of international terrorism” may sue for damages.  § 2333(a).  They are not limited to suing the individual terrorists or organizations that directly carried out the attack, however.  That is because § 2333(d)(2) also imposes civil liability on “any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.”  Victims of terrorist acts therefore may seek to recover from those who aided and abetted the terrorist act that injured them.

The plaintiffs (who are respondents) contend that they have stated a claim for relief under § 2333(d)(2).  They were allegedly injured by a terrorist attack carried out by ISIS.  But plaintiffs are not suing ISIS.  Instead, they have brought suit against three of the largest social-media companies in the world — Facebook, Twitter (who is petitioner), and Google (which owns YouTube) — for allegedly aiding and abetting ISIS.  As plaintiffs allege, ISIS has used defendants’ social-media platforms to recruit new terrorists and to raise funds for terrorism.  Defendants allegedly knew that ISIS was using their platforms but failed to stop it from doing so.  Plaintiffs accordingly seek to hold Facebook, Twitter, and Google liable for the terrorist attack that allegedly injured them.  We conclude, however, that plaintiffs’ allegations are insufficient to establish that these defendants aided and abetted ISIS in carrying out the relevant attack....

[C]ourts have long recognized the need to cabin aiding-and-abetting liability to cases of truly culpable conduct.  They have cautioned, for example, that not “all those present at the commission of a trespass are liable as principals” merely because they “make no opposition or manifest no disapprobation of the wrongful” acts of another.  Brown v. Perkins, 83 Mass. 89, 98 (1861); see also Hilmes v. Stroebel, 59 Wis. 74, 17 N. W. 539 (1883); Duke v. Feldman, 245 Md. 454, 457–458, 226 A. 2d 345, 347 (1967).  Put another way, overly broad liability would allow for “one person [to] be made a trespasser and even a felon against his or her consent, and by the mere rashness or precipitancy or overheated zeal of another.” Bird v. Lynn, 49 Ky. 422, 423 (1850).  Moreover, unlike its close cousin conspiracy, aiding and abetting does not require any agreement with the primary wrongdoer to commit wrongful acts, thus eliminating a significant limiting principle. See Nye & Nissen v. United States, 336 U.S. 613, 620 (1949).

To keep aiding-and-abetting liability grounded in culpable misconduct, criminal law thus requires “that a defendant ‘in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed’” before he could be held liable.  Id., at 619 (quoting Peoni, 100 F. 2d, at 402).  In other words, the defendant has to take some “affirmative act” “with the intent of facilitating the offense’s commission.” Rosemond, 572 U. S., at 71.  Such intentional participation can come in many forms, including abetting, inducing, encouraging, soliciting, or advising the commission of the offense, such as through words of encouragement or driving the getaway car.  2 LaFave § 13.2(a), at 457–460; see also J. Hawley & M. McGregor, The Criminal Law 81 (3d ed. 1899).  Regardless of the particulars, however, it is clear that some culpable conduct is needed. See Rosemond, 572 U.S., at 73, 77.

May 18, 2023 at 10:56 AM | Permalink


A rare example of a Thomas opinion that I pretty much 100% agreed with.

Posted by: Marc Shepherd | May 19, 2023 9:01:12 AM

While I am loath to read tea leaves from any Supreme Court decision, and the Supreme Court is not always consistent, any thoughts on what this discussion of traditional accomplice liability might mean for the encouraging immigration case?

Posted by: tmm | May 19, 2023 12:28:58 PM

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